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'Thorny facts' in Benoit case warrant cautious approach, judge rules

Qalipu Mi'kmaq First Nation Band
Qalipu Mi'kmaq First Nation Band - SaltWire File Photo

The Federation of Newfoundland Indians has won a stay of proceedings in one of the lawsuits it faces, pending the outcome of its appeal on a related matter.

Earlier this summer, the Supreme Court of Newfoundland and Labrador, in the case known as Benoit et al, ruled two documents deemed to contain confidential legal advice to the federation could remain in the public domain because neither the federation nor the Qalipu Mi’kmaq First Nation Band had made any substantial efforts to retrieve them.

The court’s decision the Federation of Newfoundland Indians had waived the solicitor-client privilege over the two documents has since been appealed by the group.

Until that appeal is heard, the federation has requested the court order the plaintiffs in the Benoit matters cease the continued and future use of the information and advice contained in the documents to which they have access.

The federation is the band’s predecessor and remains a legal entity, though it consists solely of the elected Qalipu council because it is a defendant in several unresolved court matters.

The federation said it has already suffered irreparable harm by the disclosure of its legal advice to its legal adversaries. Given the fact this information cannot simply be forgotten completely, the federation says even winning its appeal and having the plaintiffs ordered to abandon any advantage gained from the documents is of little comfort.

The Benoit case has no trial date set and is still in the process of completing pretrial procedures.

In a decision rendered earlier this week, the Court of Appeal of Newfoundland and Labrador agreed to issue the stay in the Benoit case until the federation’s appeal is heard.

In her written decision, Justice Lois Hoegg said potential harm to the federation outweighed any potential harm by delaying the Benoit case.

“Solicitor-client privilege is very important to our legal system,” wrote Hoegg. “I am therefore of the view that it was incumbent on the court to be cautious about proceeding, given the thorny facts of this case.”


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